United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 27, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10887
consolidated with No. 04-10140 & No. 04-10295
CELESTINA DELEON
Plaintiff - Appellant
v.
CITY OF HALTOM CITY; ET AL
Defendants
JACK BYNO, Individually and in his Official Capacity
Defendant - Appellee
Appeals from the United States District Court
for the Northern District of Texas
No. 4:02-CV-1045-A
Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Celestina DeLeon sued former municipal judge Jack Byno under
42 U.S.C. § 1983 for incarcerating her for misdemeanor violations
without first conducting an indigency hearing, informing her of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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her right to counsel, or appointing counsel for her. After
concluding that Byno was protected from liability by absolute
judicial immunity, the district court dismissed the suit. Byno
moved for attorneys’ fees under 42 U.S.C. § 1988, which the
district court granted upon determining that DeLeon’s suit
against Byno was frivolous. DeLeon appeals the district court’s
attorneys’ fees award in No. 03-10887. After DeLeon appealed
from the attorneys’ fees award, she filed a motion under Federal
Rule of Civil Procedure 60(b), requesting that the district court
reconsider the award. The district court denied DeLeon’s motion
and DeLeon appeals that decision in No. 04-10140. On Byno’s
motion, the district court awarded attorneys’ fees in connection
with DeLeon’s Rule 60(b) motion; DeLeon appeals this second
attorneys’ fees award in No. 04-10295. Because the three appeals
present similar issues, we have consolidated them.
I. No. 03-10887
DeLeon contends that the district court abused its
discretion by awarding attorneys’ fees to Byno in connection with
her § 1983 suit because (1) her suit was not frivolous, (2) the
award is contrary to the purpose of § 1988, and (3) she is unable
to pay the award.
Under § 1988, a district court has discretion to award
reasonable attorneys’ fees to the prevailing party in a suit
brought under § 1983. Before the district court, Byno
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successfully invoked absolute judicial immunity to obtain
dismissal of DeLeon’s suit; he is therefore the prevailing party
for purposes of § 1988. See 2 SHELDON H. NAHMOD, CIVIL RIGHTS AND
CIVIL LIBERTIES LITIGATION § 10:4 (4th ed. 2003) (“[A] defendant who
successfully asserts an immunity or affirmative defense in an
action for damages is the prevailing party under § 1988.”).
Still, attorneys’ fees are not automatically awarded to a
prevailing defendant; an award is proper only upon a finding that
the plaintiff’s suit is “frivolous, unreasonable, or groundless.”
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978).
Here, Byno’s judicial immunity was clear on the facts alleged by
DeLeon. See Holloway v. Walker, 765 F.2d 517, 522-25 (5th Cir.
1985); Sparks v. Duval County Ranch Co., 604 F.2d 976, 979-80
(5th Cir. 1979) (en banc), aff’d sub nom. Dennis v. Sparks, 449
U.S. 24 (1980). Furthermore, in light of our prior cases,
DeLeon’s arguments fail to set forth a reasonable basis for an
extension or modification of immunity law. See Holloway, 765
F.2d at 522-23. Because Byno was unequivocally protected from
liability by absolute judicial immunity, the district court did
not clearly err in finding that DeLeon’s suit against Byno was
frivolous. See Franceschi v. Schwartz, 57 F.3d 828, 832 (9th
Cir. 1995).
Moreover, an award of attorneys’ fees does not defeat the
purpose of § 1988. DeLeon’s suit against Byno could not have
effected the beneficial changes in Haltom City that she claims it
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did because most of the relevant changes (including Byno’s
resignation) occurred before she named Byno as a defendant. In
any event, the purpose of § 1988 is not only to encourage
potentially meritorious civil-rights suits, but also to
discourage frivolous suits. See Jones v. Texas Tech Univ., 656
F.2d 1137, 1144 (5th Cir. 1981). Consequently, awarding
attorneys’ fees in this case was consistent with the purposes of
§ 1988.
We also conclude that the district court properly refused to
consider DeLeon’s indigency in deciding whether to award
attorneys’ fees, in light of our holding in Alizadeh v. Safeway
Stores, Inc., 910 F.2d 234, 238 (5th Cir. 1990), that a
plaintiff’s ability to pay should not be considered by the
district judge when deciding whether to award attorneys’ fees.1
In the alternative, DeLeon claims that the district court
abused its discretion by including in the award fees incurred by
Byno’s counsel for attending depositions in related cases.
Although DeLeon argues that these depositions had “little or
1
The Alizedah court did note that a party’s indigency
should be taken into account when setting the amount of
attorneys’ fees. But “the party against whom the attorneys’ fees
are to be assessed will bear the burden of going forward and of
persuasion” and the party should “support[ its] request with
adequately detailed and comprehensive affidavits or similar
‘evidence.’” Alizedeh, 910 F.2d at 239 n.7. According to the
district court, DeLeon failed to submit an affidavit or
declaration in support of her indigency allegations. Therefore,
DeLeon did not meet her burden of showing that the attorneys’
fees award should be reduced on account of her financial
condition.
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nothing to do with the claims against Byno,” she also admits that
these related lawsuits “implicated Byno.” DeLeon Br. at 7, 9.
Importantly, the parties had agreed that these depositions could
be used in any of the related cases. Based on this fact, the
district court reasonably determined that attendance at these
depositions was necessary in order for Byno’s counsel to fully
represent him. Including these fees in the award, therefore, was
not an abuse of discretion.
Consequently, we hold that the district court did not abuse
its discretion in awarding attorneys’ fees to Byno.2
II. No. 04-10140
DeLeon’s next appeal concerns the district court’s denial of
her Rule 60(b) motion to reconsider the attorneys’ fees award.
She contends that the district court abused its discretion by
denying her motion because the motion met the standards under
Rule 60(b)(2), and, in any case, the district court’s order
failed either to lay out the applicable legal standard or to
address her arguments. Furthermore, DeLeon asserts that the
district court’s award of fees is unjust in light of her new
evidence of Byno’s culpability.
A district court’s failure to detail its reasons for denying
a Rule 60(b) motion to reconsider is not per se an abuse of
2
DeLeon raises numerous additional arguments for the
first time in her reply brief. We decline to consider these
untimely arguments. See Baris v. Sulpicio Lines, Inc., 932 F.2d
1540, 1546 n.9 (5th Cir. 1991).
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discretion, and remand is not necessary if the plaintiff has not
presented a colorable claim for relief. See Provident Life &
Accident Ins. Co. v. Goel, 274 F.3d 984, 998-99 (5th Cir. 2001).
Although it is true that the district court’s opinion here
provided little analysis, we will not remand because DeLeon has
not presented a colorable claim for relief. DeLeon has not shown
how the new evidence she presented is material or controlling, or
how it would have produced a different result (two of the
requirements for a Rule 60(b)(2) motion), inasmuch as it has no
bearing on whether Byno is protected by judicial immunity. Cf.
Stump v. Sparkman, 435 U.S. 349, 356 (1978) (holding that a judge
is protected by judicial immunity for his judicial acts even when
the judge acts maliciously).
Even if DeLeon’s new evidence did establish that Byno
violated defendants’ civil rights, we still would not agree that
an award of attorneys’ fees against DeLeon was unjust or
inconsistent with the purpose of § 1988.3 Quite simply, DeLeon’s
3
Contrary to DeLeon’s assertions, the evidence she
presented in her Rule 60(b) motion does not show that Byno
committed civil-rights violations. Byno did not admit to the
charges against him when he entered into the Voluntary Agreement
To Resign From Judicial Office In Lieu of Disciplinary Action.
The agreement reads: “Judge Byno, by his execution of this
voluntary agreement, does not admit guilt, fault or liability to
the allegations contained in the complaint set forth above.”
Furthermore, the agreement specifically provided that “no
Findings of Fact or Conclusions of Law have been made.”
In any case, Byno never claimed that he had done no wrong;
his defense is that, whether he violated DeLeon’s rights or not,
he is protected from liability by absolute judicial immunity.
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suit against Byno was frivolous, since Byno was undeniably
protected from liability by judicial immunity. See Franceschi,
57 F.3d at 832. Moreover, as explained above, Byno resigned
before DeLeon named him as a defendant, so DeLeon’s suit against
Byno was not only frivolous, it was unnecessary to cause Byno’s
resignation. An award of attorneys’ fees in this case is
therefore consistent § 1988’s purpose of deterring frivolous
litigation. Consequently, the district court did not abuse its
discretion by denying DeLeon’s motion to reconsider.
III. No. 04-10295
According to DeLeon, the district court erred by awarding
attorneys’ fees to Byno a second time because attorneys’ fees
under § 1988 are not available for Rule 60(b) motions.
Additionally, she claims that the district court abused its
discretion by awarding attorneys’ fees because her motion was not
frivolous and an award of fees is unjust. In the alternative,
DeLeon contends that the district court abused its discretion by
awarding Byno his full fees request.
DeLeon’s argument that § 1988 is inapplicable to her Rule
60(b) motion is meritless. Her motion was part of her § 1983
suit against Byno. Since Byno prevailed on the motion, the
district court had discretion to award Byno his attorneys’ fees.
See 42 U.S.C. § 1988(b) (authorizing the district court to award
attorneys’ fees to the prevailing party “[i]n any action or
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proceeding to enforce a provision of [section 1983] of this
title”).
DeLeon argues that, even if § 1988 does apply, her motion
was not frivolous (and, consequently, attorneys’ fees were
inappropriate) because the motion merely requested that the
district court consider the purpose of § 1988 in determining
whether an attorneys’ fees award was justified. Because the
evidence DeLeon presented in her Rule 60(b) motion was irrelevant
to whether her underlying § 1983 suit was frivolous, the district
court did not clearly err in concluding that her Rule 60(b)
motion was likewise frivolous. Since DeLeon’s motion was
correctly determined to be frivolous, the award does not offend
the purpose of § 1988.
DeLeon also challenges the amount of attorneys’ fees
awarded, arguing that Byno’s counsel billed an excessive number
of hours. We see no clear error in the district court’s finding
that 8.5 hours was a reasonable and necessary amount of time for
Byno’s counsel to spend defending against DeLeon’s Rule 60(b)
motion. Consequently, the amount of attorneys’ fees awarded was
not an abuse of discretion.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
award of attorneys’ fees to Byno in appeal No. 03-10887, AFFIRM
the district court’s denial of DeLeon’s motion to reconsider in
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appeal No. 04-10140, and AFFIRM the district court’s award of
attorneys’ fees in connection with DeLeon’s motion to reconsider
in No. 04-10295.
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